NDIA Accountability Project

Concerns about assessment processes and funding for speech pathology supports

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Submission to Community Affairs Legislation Committee Inquiry into the ‘Getting the NDIS Back on Track No. 1 Bill 2024

Reference Information

  • Date of letter: 12.7.2024
  • Recipient: Ms Jeanette Radcliffe, Committee Secretary Senate Standing Committees on Community Affairs
  • Sent via: community.affairs.sen@aph.gov.au

Re:

Submission to Community Affairs Legislation Committee Inquiry into the ‘Getting the NDIS Back on Track No. 1’ Bill 2024

Dear Ms Radcliffe, Rainbow Speech Pathology (RSP) thanks the Committee for the opportunity to make a submission in relation to the National Disability Insurance Scheme Amendment (‘Getting the NDIS Back on Track No. 1’) Bill 2024 (the NDIS Bill). RSP is a small business employing 5 speech pathologists in Sandgate Brisbane and we are all members of Speech Pathology Australia the national peak body for speech pathologists in Australia, representing more than 15,000 members.

Speech pathologists are university trained allied health professionals with expertise in the diagnosis, assessment, and treatment of communication and swallowing difficulties and as such provide crucial supports for NDIS participants. RSP would like to formally raise our deep concerns regarding the lack of specificity in the NDIS Bill. In particular, it has been drafted in such a way as to enable delegated legislative powers without parliamentary oversight over much of the detail that is critical to the way the proposed changes will be implemented. Given the monumental complexity of NDIS reform, we do not feel it is appropriate or indeed acceptable to the community that the NDIS serves- for parliamentary oversight to be removed, de facto, from the legislation. From the specific perspective of RSP, we are deeply concerned regarding the definitions of early intervention or disability requirements and their associated pathways (as per Section 27) as this will have far reaching impacts upon access to the NDIS.

RSP is extremely concerned by the proposal for a new needs assessment within the NDIS Bill, which, prima facie, appears to be a rebranding of Independent Assessments. This assessment model has not been determined, and previous attempts by the NDIA to introduce a global assessment have been problematic and met with sector wide condemnation. The allied health sector (and other stakeholders within the scheme) advocated very strongly against the previous attempt under different nomenclature (‘Independent Assessments’) due to a lack of consultation with the sector and concerns that these assessments were not fit for purpose. This was particularly the case for people who have communication and swallowing needs, as the assessments were not communication accessible and did not capture the possibility of mealtime concerns. The potential for this situation to be repeated, but with a Minister having the power to determine the assessment without Parliamentary oversight is of grave concern to us. The allied health sector, in particular speech pathologists must be consulted to ensure these assessments are fit for purpose, communication accessible and will not cause harm to participants. Concurrently, the working method to determine funding from the needs assessment is also not yet determined as per Section 32K. This lack of transparency breeds mistrust, particularly given that the Minister again has the ultimate control over this process, and the need to ensure financial sustainability is specified without any other detail.

Similarly, it is unclear if the budget set as a result of a needs assessment will be a reviewable decision. Due to the lack of detail, the NDIS Bill is silent on this critical aspect of the process.

Supports that will and will not be funded by the NDIS: RSP is deeply concerned regarding the way that the lists of supports determining what will or will not be funded by the NDIS will be determined. Whilst some items, such as online gambling are obviously inappropriate, there are others that are

Rainbow Speech Pathology

www.rainbowspeechpathology.com.au admin@rainbowspeech.com.au Phone: 07 3609 2007

not so clear cut. Household items such as blenders for instance, may be necessary for some people with swallowing needs as a result of their disability to prepare food that is the right consistency for them to eat safely. A blanket rule that does not allow participants to access certain items that have been determined to be necessary by a qualified speech pathologist will simply reinstate a two-tiered system whereby only people with disability who have the financial means can access these items and services.

Similarly, prescribing therapy techniques that must be used would be inappropriate and have a significant negative impact upon participants. Speech pathologists have the clinical skills to determine best practice for their therapy supports, and evidence based may be based upon clinical experience in conjunction with the participant’s history. It has also been expressed directly to the NDIA, as well as the Research and Evaluation team that there may not always be direct research evidence available. This is due to a significant history of people with disability being excluded from research studies. In addition, the controlled nature of research variables mean that supports will have only been trialled with a certain type of person or family and should not actually be extrapolated to others who do not fit that exact criteria.

Finally, it must be acknowledged that it is not possible to label every support that a person might need; there needs to be trust in speech pathologists that are working within their scope of practice under the Code of Ethics (2020), specifically the principles of beneficence and non-maleficence. The use of the APTOS to determine supports The Applied Principles and Tables of Support to Determine Responsibilities of the NDIS and other service systems (APTOS) has been identified by the NDIS Review as causing confusion and difficulties for participants.

It has been proposed that this should not be used as an instrument to determine supports, as it lacks clarity regarding who should be responsible for funding supports- the states and territories, or the Commonwealth. This confusion leaves participants in a liminal RSPce where it is unclear if the support will be funded by the NDIS, or there may be disagreement about who should be funding the support, causing significant delays. These delays can be disastrous for participants who may be needing to access mealtime supports critical to their safety and wellbeing, or assistive technology where there may be strict timelines regarding quoted costs, or where the person has a progressive condition and needs urgent modifications. RSP is keen to engage with the NDIA to improve health outcomes for people with disability

Rainbow Speech Pathology submits this report to the Community Affairs Legislation Committee to express our deep concerns about the ‘Getting the NDIS Back on Track No. 1’ Bill 2024 and its potential impacts on people with disability and their families. While we support the intent of getting the NDIS ‘back on track’, the proposed changes risk undermining the core principles of choice and control, and the scheme’s primary purpose to provide individually tailored, quality supports enabling people with disabilities to live full, self-directed lives.

In summary the concerns are:

  • Lack of Legislated Codesign Commitment Of serious concern is the lack of legislated commitment to codesigning the new NDIS tools and processes in close partnership with people with disabilities and their representative organizations. Comprehensive codesign, research, testing and refinement of these reforms
  • in close partnership with diverse disability communities - must occur before any implementation.

Needs Assessments and Funding Concerns

The proposed shift to using needs assessments to determine funding could significantly restrict access to necessary supports, particularly for people with complex or multiple disabilities. The bill lacks clarity on who will conduct the assessments, their level of disability expertise, and does not provide participants the legal right to appeal inaccurate assessments. The assessment tools must be extensively researched, tested and co-designed to ensure they are reliable, accurate and accessible for diverse needs.

Impacts on People with Psychosocial Disability

The proposed changes to the eligibility criteria and assessment processes risk disproportionately impacting people with psychosocial disability. We are deeply concerned that the reforms could lead to people with psychosocial disability losing access to vital NDIS supports.

Reasonable and Necessary Supports vs. Defined Budget and Support Lists

Moving from ‘reasonable and necessary supports’ to defined lists of permitted and prohibited supports with budgets threatens to constrain participant autonomy, choice and control. It could significantly restrict access to previously covered supports that were more flexible and tailored to individual needs.

Concerns for People with High Support Needs

We hold deep concerns that a funding algorithm will discriminate against people with high support needs by limiting funding to 1:3 shared support ratios, undermining their rights to choice and control over living arrangements and supports. This is unacceptable and contrary to Australia’s obligations under the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).

Plan Management and Review Rights

The bill grants the NDIA CEO broad powers to refuse requests for self or plan management of NDIS funds and change funding to Agency Managed, with limited clarification on the reasons for refusal or avenues for review. Participants must have the right to appeal decisions about plan management. The proposed changes to plan variation, reassessment and review processes also risk diminishing participant rights and autonomy.

Overreliance on Delegated Legislation

The bill’s overreliance on delegated legislation (NDIS rules) rather than detailed clauses in the primary legislation raises concerns about inadequate parliamentary oversight and the potential for diminished protections and appeal rights for participants.

To address these concerns, Rainbow Speech Pathology propose the following recommendations and amendments:

  • Enshrine in legislation comprehensive codesign requirements as outlined above.
  • Ensure needs assessors have disability expertise, that they work collaboratively with trusted experts who know the person being assessed and provide participants assessment appeal rights.
  • Ensure assessment tools and processes are suitable for the full range of disabilities.
  • Do not narrow the definition of a NDIS support, ensure flexibility and innovation in how funding can be used to achieve good outcomes.
  • Prohibit any algorithm or methodology that discriminates against people with high

Getting the NDIS Back On Track

www.rainbowspeechpathology.com.au admin@rainbowspeech.com.au Phone: 07 3609 2007

support needs and undermines their rights to choose where they live and how they are supported.

Recommendations

e) Strengthen requirements for explaining plan management decisions and provide avenues to review and appeal plan management decisions.

e) Enhance NDIS Act clauses to ensure sufficient parliamentary oversight and participant protections and appeal rights, rather than deferring to NDIS Rules.

e) Ensure that the legislative timetable accommodates the need to ensure that all changes to the NDIS are codesigned and thoroughly tested with the disability community.

Getting the NDIS back on track should mean realising its original vision of empowering people with disabilities with the flexible, personalised supports they need to thrive - not constricting their choices and control. As the Committee considers this legislation, we urge you to deeply engage with the concerns and expertise of the disability community, and ensure that people with disabilities and our families are at the centre of our NDIS now and in the future.

Please do not hesitate to contact me and discuss this submission further

Kind Regards,

Calla (kay-la) Dolton BCi, BEd(sec), MSpPath Lead speech pathologist and director of Rainbow Speech Pathology

Calla Dolton Speech Pathologist and director